Dear : On order of the U.S. District Court for the in the case of v. , Secretary of the Navy (Case No. 1:19-cv-03400-TFH), and upon the directive of the Secretary of the Navy, your case was remanded to the Board for Correction of Naval Records (Board) for reconsideration of its 2014 decision denying your request to void your 25 July 2008 discharge for alcohol rehabilitation failure and to grant you a 20-year retirement. In addition to reconsidering its 2014 decision holistically to determine whether any relief is appropriate based upon errors or injustices, the Board also addressed certain specific issues raised in your complaint as directed by the Court. Specifically, the Board addressed your assertion that its 2014 decision overlooked factual errors in the administrative record relied upon in its decision, and overlooked or ignored your arguments regarding two analogous Board decisions from 2001 and 2003 without distinguishing them or explain why they lacked applicability. In addition to reviewing your case for errors or injustices, the Board also considered the totality of the circumstances to determine whether any equitable relief would be appropriate. A three-member panel of the Board, sitting in executive session, reconsidered your application for relief on 2 October 2020. The names and votes of the panel members will be furnished upon request. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your previous applications for relief and all matters submitted in support thereof, the matters contained within your pending complaint to the U.S. District Court for the District of Columbia, the matters submitted by you for consideration since your case was remanded to the Board for reconsideration, relevant portions of your naval and medical records, and applicable statutes, regulations and policies. As noted above, you previously petitioned the Board and were advised that your previous applications had both been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious consideration of the entire record, the Board found the evidence was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. FINDINGS OF FACT The Board, having reviewed all the facts of record pertaining to your allegations of error and injustice, finds as follows: a. You enlisted in the Navy Reserves in January 1989 and entered on to active duty on 2 February 1989 where you served until your discharge in 2008. Between 5 February 1989 and 21 June 1990, you signed various documents acknowledging that you were briefed on the Navy’s drug and alcohol abuse policies. b. In May 2005, after being diagnosed as alcohol dependent, you then self-referred into a Level III Substance Abuse Rehabilitation Program (SARP). On 17 June 2005 you successfully completed the three-week inpatient portion of your treatment. You were then directed to undergo a 12-month continuing care (aftercare) program requiring you to meet weekly with the Command Drug and Alcohol Program Advisor (DAPA), attend one Alcoholics Anonymous (AA) meeting at least three times per week for six months, meet weekly at the Naval Hospital SARP until completion of continuing care, participate in a weekly exercise program, and to refrain from drinking any alcohol. You acknowledged these requirements by your signature in September 2005. You successfully completed this aftercare program in June 2006. c. On 14 August 2006, after completing the above referenced Level III SARP, you were picked up by the Police Department ) for public intoxication. Your blood alcohol concentration (BAC) was measured by a breathalyzer test at .247. On 21 September 2006, you received a “Page 13” Letter of Counseling/Warning for this incident which directed you to successfully complete a SARP treatment program for alcohol abuse and a command aftercare program, to follow post rehabilitation procedures IAW OPNAVINST 5350.4C, and “to abstain from alcohol consumption (NOT DRINK ALCOHOL AT ALL).” This letter warned you that “any further alcohol incidents, anytime in your career, will result in disciplinary action and in processing for administrative separation.” d. Although the delivered you back to military authorities without charging you with any offense and your command elected not to pursue nonjudicial punishment (NJP), this event nonetheless qualified as an “alcohol incident.” Accordingly, you were a “treatment failure” as of 14 August 2006 per MILSPERSMAN 1910-152. Paragraph 3 of MILPERSMAN 1910-152 defines a “treatment failure” to include “[a]ny member who incurs an alcohol related incident at any time in their career after a period of treatment at Level 1 or above, that was precipitated by a prior incident.” The definition also includes “[a]ny member who … has self-referred [for rehabilitative treatment], and has been screened by medical personnel and found to be in need of treatment, and who ... incurs an alcohol incident.” An “alcohol incident” is defined as “an offense punishable under the [Uniform Code of Military Justice] or civilian authority committed by a member where, in the judgment of the member’s CO, the consumption of alcohol was the primary contributing factor.” Public intoxication is an offense punishable in as a Class 4 misdemeanor, and the consumption of alcohol, as evidenced by your .247 BAC, was clearly its primary contributing factor. Accordingly, you had an “alcohol incident” on 14 August 2006 after completing the above referenced Level III SARP treatment for alcohol dependency, which qualified you as a “treatment failure.” This conclusion is supported by an evaluation by the Naval Hospital SARP, conducted on or about 4 October 2006 but erroneously dated 4 October 2005,1 which stated that you were “considered a treatment failure due to previous alcohol treatment in 2005.” e. As noted immediately above, you were screened by the Naval Hospital SARP on or about 4 October 2006. You were again diagnosed as alcohol dependent. The SARP outlined a 12-month continuing care (aftercare) program that you signed and acknowledged on 4 October 2006. This program required you to meet with the Command DAPA weekly until 4 October 2007, attend AA meetings seven times per week for three months until 5 January 2007, meet weekly at SARP until 4 October 2007, undergo random breathalyzer testing until 4 October 2007, “NOT DRINK ANY ALCOHOL. (EVER),” and to refrain from visiting, attending, or participating in any alcohol related events, such as clubs, bars or the surroundings focused on the consumption of alcohol through 5 October 2007. This program was noted in the Drug and Alcohol Abuse Report (DAAR) related to your 18 August 2006 alcohol incident signed by your commander on 17 November 2006, as was the commander’s decision not to administer NJP. f. Prior to completion of this aftercare program, you were found to be under the influence of alcohol on duty on 24 September 2007. This was discovered through a breathalyzer test performed pursuant to your aftercare program. During the command’s preliminary inquiry into this incident, you admitted to drinking “about a fifth of liquor” during the previous evening/early morning. You also admitted to knowingly violating both the conditions of your SARP aftercare program and the Page 13 counseling that you signed. This incident qualified you as a second treatment failure, as paragraph 3 of MILPERSMAN 1910-152 defines a treatment failure to include “[a]ny member who … fails to follow … any medically prescribed and command- approved aftercare plan.” It also qualified as another “alcohol incident,” as your consumption of alcohol constituted as violation of a lawful order as reflected in your previously Page 13 counseling, punishable under Article 92, Uniform Code of Military Justice (UCMJ). Per paragraph 1b of Enclosure 1 to OPNAVINST 5350.4, your processing for administrative separation was mandatory at this point. g. On 30 October 2007, you failed to report to your place of duty after drinking the night before. Instead, you went to the nearest emergency room (ER) for “detox” treatment. This constituted another alcohol incident, as it was punishable under Articles 86 and 92, (UCMJ). Following your ER visit, you were transferred to Behavioral Hospital for Level III inpatient treatment for alcohol dependence. h. On 8 November 2007, another SARP alcohol evaluation was conducted. The SARP official determined that you were a treatment failure “due to [your] return to abusive drinking 1 The memorandum is dated 04 October 2005, but references your screening appointment on 06 October 2006. Considering that you signed the continuing care plan established by the SARP on 4 October 2006, the board concluded that your screening appointment must have been on 4 October 2006 and the other dates were mistakenly transcribed. n. Following the ADSEP board, your counsel submitted a Letter of Deficiency (LOD) dated 22 February 2008 for consideration prior to your commander’s endorsement of the board’s recommendation. While the LOD highlighted several equitable reasons to disregard the board’s recommendation, it did not allege substantive, procedural, or evidentiary irregularities with the proceedings. o. By memorandum dated 14 March 2008, your commander forwarded the ADSEP board proceedings to Navy Personnel Command (NPC) for action. Contrary to the ADSEP board’s recommendation, your commanding officer recommended that you receive a General (under honorable conditions) discharge. This memorandum contained some factual errors. Specifically, in recommending the lesser characterization of service, your commanding officer asserted that your history of alcohol abuse started with an alcohol-related assault in 1995, and that you were arrested for public intoxication in August 2006. Neither of these assertions were accurate, as there was no evidence that the 1995 assault was alcohol related and you were not arrested for the public intoxication in 2006. p. On 12 May 2008, the Chief of Naval Personnel (CNP) approved and authorized your Honorable Discharge from the Navy by reason of alcohol rehabilitation failure. In doing so, the CNP disregarded the recommendation of your commanding officer. q. On 10 June 2008, you filed a complaint against your commanding officer IAW Article 138, UCMJ, regarding the inaccurate information contained in his endorsement discussed in paragraph (p) above. In response, your commanding officer forwarded a memorandum, dated 1 July 2008, to NPC to correct the inaccuracies in his previous endorsement. r. On 25 July 2008, you were discharged from the Navy by reason of alcohol rehabilitation failure with an Honorable characterization of service and an “RE-4” reentry code.2 Upon your discharge, you received approximately $30,988.41 in involuntary separation pay. s. On 16 December 2008, the Department of Veterans Affairs (VA) granted you service- connection for depression with a thirty percent (30%) disability rating. In finding a service connection, the VA relied upon the fact that you were treated for depressive symptoms while in the Navy. 2 This reentry code made you ineligible for reenlistment. BOARD DELIBERATIONS Pursuant to the Court’s order, the Board specifically addressed your assertion that its 2014 decision overlooked factual errors in the administrative record that it relied upon in making its decision. First, the Board considered your assertion that its 2010 decision in your case, which was reconsidered in 2014, erroneously found that you were an alcohol rehabilitative failure in October 2005 after a “June 2005 Level III treatment.” The Board agreed with your assertion that this was an error. You were not a treatment failure in October 2005. The Board noted, as did your complaint, that the date listed on your October 2006 SARP evaluation was erroneously dated as 4 October 2005, and that this may have resulted in the 2010 error. The Board concluded that the reference in the 2010 decision to your “June 2005 Level III treatment” was to the treatment program that began on 17 June 2005 and was completed in June 2006. Although you were not an alcohol rehabilitation failure in October 2005 as the BCNR’s 2010 decision asserted, you were an alcohol rehabilitation failure as of 14 August 2006 when you were picked up by the for public intoxication. In this regard, the Board specifically rejected your contention in paragraph 6 of your complaint that “[i]t is debatable that the August 2006 [incident] … qualified under OPNAVINST 5350.4C as an alcohol-related incident.” The term “alcohol related incident” is defined in paragraph 4 of MILPERSMAN 1910-152 in a manner that clearly encompasses the August 2006 incident. It does not require actual subsequent UCMJ or civilian criminal proceedings. As the 2010 decision merely mislabeled your August 2006 treatment failure as an October 2005 treatment failure, the Board specifically disagrees with your contention that you were prejudiced by the addition of aggravating factors. This error did not result in the 2010 Board considering additional treatment failures, but rather it merely confused the date of your initial failure. The Board considered this to be a harmless error, but reconsidered your application holistically based upon the fact contained herein. The Board also agreed with your assertion in paragraph 38 of your complaint that the 2010 decision was erroneous in that it stated that you received a “waiver” for the August 2006 incident. It believes that this error was attributable to the erroneous reference to a waiver in your 8 November 2007 SARP evaluation. The Board found that the decision not to process you for ADSEP and to permit you to receive a second rehabilitative treatment after the August 2006 incident was not pursuant to a waiver but rather due to your command’s discretion. The Board disagreed with your assertion, however, that this error prejudiced you by suggesting that you received special treatment. Whether by waiver or by command discretion, the Board found that you were the beneficiary of a second chance that the command was not obligated to provide you. In this regard, the Board noted that in accordance with paragraph 1b of Enclosure (1) to OPNAVINST 5350.4C, it is Navy policy to provide members only one period of treatment in response to an alcohol incident per career, and that you received multiple treatment periods due to your command’s discretion. Accordingly, the Board also found the reference to a “waiver” in the previous Board decision to be harmless. Next, the Board specifically addressed your assertion that its 2014 decision overlooked or ignored your arguments regarding analogous Board decisions from 2001 and 2003 without distinguishing them or explaining why they lacked applicability. While the Board acknowledges that the 2014 decision was silent with regard to the subject decisions, its own review of these cases found them to be neither relevant nor analogous to your case. The language that your complaint cites to in the 2001 decision referred to comments made by the Petitioner during his separation physical which suggested that he was not suffering from any mental health conditions at the time of the conduct in question, while the language it cites to in the 2003 decision comments only on the absence of evidence. In fact, the only analogy that the Board could discern between these cases and your case is that the relief requested was denied in all three cases in part because the Board could not find evidence that the mental health conditions asserted were exhibited or had any mitigating effect on the conduct in question at the time. Although the cases you cited are not analogous to your case, the Board generally agrees with your assertion that evidence showing that misconduct resulting in an administrative discharge was related to an untreated mental health conditions may warrant favorable consideration. The Board routinely and liberally considers the impact of mental health conditions on the facts and circumstances of each case. Each mental health-related case the Board considers is unique and is reviewed and liberally considered in the context of guidance provided by the Office of the Secretary of Defense.3 However, the mere fact that an undiagnosed mental health condition may have existed at the time of the conduct in question does not mandate relief. 3 See Secretary of Defense Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” 3 September 2014 (Hagel Memo). See also, Under Secretary of Defense (Personnel and Readiness Memorandum, “Clarifying Guidance to Military Discharge Review Board and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” 25 August 2017 Finally, the Board considered the effect that the factual errors included in your commanding officer’s endorsement memorandum forwarding your ADSEP recommendation to NPC may have had upon the decision to approve your separation. In applying the standard that an error is prejudicial if there is substantial doubt that the result would have been different absent the error, the Board concluded that this error was harmless. The Board found it very unlikely that the decision of the CNP to approve your discharge was influenced by the distinction between an “arrest” and what you termed a “courtesy handover.” Likewise, the Board did not believe that your commanding officer’s error in stating that your 1995 assault was “alcohol related” would have made a difference in the CNP’s decision. In making this determination, the Board noted that the CNP disregarded your commanding officer’s recommendation that you receive a General discharge, rather than the Honorable Discharge recommended by the ADSEP board. As such, the Board concluded that the CNP did not attach significant weight to your commanding officer’s erroneous endorsement memorandum, and instead relied upon the recommendation of the ADSEP board which was not tainted with these factual inaccuracies. CONCLUSION After a careful and deliberate consideration of all of the evidence of record, including but not limited to all matters submitted by you in support of your previous applications for relief to the Board, the matters contained within your pending complaint to the U.S. District Court for the , and the matters submitted by you for consideration since your case was remanded to the Board for reconsideration, and in light of its consideration of the specific issues raised in your complaint and discussed above, the Board found no error or injustice in your discharge from the Navy which would warrant relief. In making this finding, the Board specifically rejected your argument that you were not a treatment failure in August 2006. Your public intoxication incident on 14 August 2006 that prompted the to turn you over to military authorities clearly meets the regulatory definition of an alcohol incident. As you had already completed a Level III alcohol rehabilitation program prior to this incident, you were unquestionably a treatment failure as of that date. Your command could have processed you for administrative separation at that point, but instead elected to provide you with further treatment and the opportunity to continue serving in the Navy to reach your retirement eligibility date. You were also clearly warned at that time that any further alcohol incidents would result in your processing for administrative separation. This warning and the potential consequences however, did not deter you from engaging in further alcohol consumption. You had another alcohol incident when you violated a lawful order not to consume alcohol early in the morning of 24 September 2007 and were found to be under the influence of alcohol while on duty that day. This incident occurred while you were enrolled in your second period of alcohol rehabilitation treatment. In accordance with paragraph 1b of Enclosure (1) to OPNAVINST 5350.4, your processing for ADSEP for alcohol rehabilitation failure was mandatory at this point. Despite this and several warnings from your command about the potential consequences, you continued to violate orders by consuming alcohol, and as a result had several more alcohol incidents in the months that followed. Even though your ADSEP processing was mandatory at this point, your command continued to provide you with alcohol rehabilitation treatment. You were enrolled in a third treatment program at Behavioral Hospital in November 2007 and then a fourth treatment program in December 2007. In accordance with OPNAVINST 5340.4, it is the Navy’s policy to provide members diagnosed as alcohol dependent with one period of treatment in response to an alcohol incident per career. You were provided with multiple treatment periods. The Board believed that your command went above and beyond to provide you with treatment, and provided you numerous opportunities and warnings to adjust your behavior so as to enable you to reach your retirement eligibility date. The Board found no substantive errors or injustices involved in your ADSEP processing. You were represented by qualified counsel at the ADSEP board, and the board fairly considered the evidence. This included testimony from several witnesses attesting to your rehabilitation potential and arguing that you should be retained in the Navy at least through your retirement eligibility date. The ADSEP board was clearly aware of the potential consequences of a discharge recommendation upon your retirement eligibility when it considered your case, but still voted unanimously to recommend your separation from the Navy. The ADSEP board had the option of recommending that your separation from the Navy be suspended, but elected not to do so. The fact that the ADSEP board recommended that you receive an Honorable Discharge despite the alcohol-related misconduct involved in your rehabilitation failure convinced the Board that it carefully considered the likely consequences of its recommendation. Due to your longevity of service and the potential consequences upon your retirement eligibility, the ADSEP board’s recommendation was forwarded all the way up to the CNP for a final decision. As noted earlier, the CNP disregarded the recommendation of your commanding officer that you be separated with a General discharge. This convinced the Board that the consequences of your discharge were carefully considered even at the CNP level. Your contention that you were misdiagnosed with a personality disorder by Navy medical personnel, and that you were untreated for depression until it was too late, was fully and carefully considered by the Board in light of the guidance provided in the Hagel and Kurta Memos (see footnote 3). Accordingly, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service. Even under this liberal standard of consideration, however, the Board found no error or injustice which would warrant relief in your case. The Board did not doubt that you were suffering from depressive symptoms. However, it believed that the depressive symptoms you began to exhibit in 2007 were at least partially attributable to the harsh realization that your own conduct had placed your retirement eligibility into jeopardy. In this regard, the Board noted that, other than your December 2007 statement to a mental health provider complaining of a depressed mood for the previous six months, there was no medical or clinical evidence indicating the previous presence of any mental health conditions or symptoms prior to mid- to late-2007 when your retirement eligibility was in jeopardy. Additionally, your medical records reflect that this concern was mentioned during several of your consultations with mental health providers. The Board also disagreed with your assertion that an earlier treatment for depression would have prevented or mitigated the conduct that resulted in your ADSEP. As mentioned above, the Board found no evidence in the record reflecting the onset of any depressive symptoms until your December 2007 statement to a mental health provider. Because of this, the Board concluded that any untreated depressive condition or symptoms were not the underlying cause of your initial inpatient hospitalization in May/June 2005; your public intoxication in August 2006; your drinking and being under the influence of alcohol while on duty in September 2007; or your second inpatient hospitalization in October/November 2007. As the board believed your depressive symptoms to have originated at least partly from the jeopardy to your retirement eligibility that you caused, it did not find any injustice in your discharge under the circumstances. Finally, the Board unequivocally determined that the records reflect no evidence that your diagnosis with a personally disorder in December 2007 stigmatized you or had any adverse impact upon your ADSEP processing. Accordingly, it did not find any error or injustice warranting a change to your records. In addition to reviewing your case for any errors or injustices in the decision to discharge you from the Navy prior to your retirement eligibility date, the Board also reviewed your case under the recent guidance provided by the Under Secretary of Defense (Personnel and Readiness) 4 to determine if any equitable relief is appropriate in your case. In this regard, the Board considered, among other factors, the fact that the VA granted you a service-connection disability rating for depression; your assertion that you were misdiagnosed for a personality disorder and untreated for depression until it was too late; your 19-1/2 years of honorable service and the fact that your discharge deprived you of retirement benefits for this service; the marital difficulties reflected in the record that you were dealing with at the time of the conduct which resulted in your discharge; and the records provided reflecting your post-service career and conduct. Even in light of this guidance and considering your application holistically, the Board did not find equitable relief to be appropriate at this time. The mitigating factors described above did not outweigh the fact that you were provided every possible opportunity to conform your behavior to reach your retirement eligibility date, but that you failed to do so. 4 Under Secretary of Defense (Personnel and Readiness) Memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, or Clemency Determinations,” 25 July 2018 (Wilkie Memo). It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. Sincerely, 11/4/2020 Executive Director Signed by: